LCP4804 EXAM PACK 2024 -2025 BHE v MAGISTRATE KHAYELITSA SHIBI v SITHOLE HR COMMISSION v PRESIDENT of SA Aiuthority for jettisoning discredited apartheid rule in S23 BAA preferring males to females in matters of succession. S23 BAA , male primogeniture, legitimate VS illegitimate children all declared unconstitutional and removed from customary law. Understanding customary law in post -transformation state and contrast with pre -transformation state - ANS -PILANE v PILANE Court held traditional authority cannot deny constitutional rights to members of community who wish to enjoy them. S1 of Law of Evidence Amendment Act states any court may take judicial notice of law of foreign state or indigenous law. In PILANE customary law recognized and protected by Constitution is emphasized. Living, active and dynamic and part of lives of people. LEAA merely refers to taking of judicial notice. Puts customary law at level of foreign law as opposed to vital component of constitutional system. Requires customary law to be proved before being used. Pre-recognition customary law was used provides that it does not oppose principles of public policy or natural justice. Transformative role of post apartheid statutes: RCMA - ANS -Before Act - customary marriage not recognized as marriage in law. Knows as customary union - spouses didn't enjoy marital rights. Black women perpetual minors who could be discarded simply by husband marrying other women by civil rites. Nwamita v Shilubana - ANS -Development of customer law of Succession Philia not appointed traditional leader in 1968 when father died. Due to laws of unfair discrimination. Fathers brother Richard appointed. Died 2001 - Valoyi Traditional Authority : appoint Philia on constitutional provision of gender equality. Amended past practice - eldest son successor. Sidwell (son) dispute appointment relying on past practices. HC and SCA decided in favor of Sidwell I.t.o. community past practices. SHILUBANA v NWAMITWA Appeal to CC Unanimous judgment - Ms Shilubana appointed legitimately. Emphasized customary law living system of law. Not bound by historical precedents. Flexibility allowed to evolve as community changes. CC deviated from past decisions. Redefine customary law as system that reflect current practices of community. Customary law regarding appointment of traditional leader legitimately evolved to allow appointment of woman. Consistent with Constitution. cC upheld appeal. Particular community adapted laws. Other communities judged according to own practices. Development of living customary law under Constitution - ANS -
MABUZA v MBATHA MABENA v LETSOALO Courts negotiated transition from old order to present.
MABUZA v MBATHA MABENA v LETSOALO Courts negotiated transition from old order to present.
